R. v. Milton, 2024 BCPC 47 (CanLII)
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2024 BCPC 47 |
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Date: |
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File No: |
36497-1 |
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Registry: |
Dease Lake |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REX
v.
WALKER MILTON
REASONS FOR JUDGMENT
(RE: s. 490(2)(a) CRIMINAL CODE APPLICATION)
OF THE
HONOURABLE JUDGE D. PATTERSON
(Appearing via videoconference)
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Appearing for the Crown: |
Officer R. Cadwell (via videoconference) |
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Place of Hearing: |
Terrace, B.C. |
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Date of Hearing: |
February 16, 2024 |
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Date of Judgment: |
February 16, 2024 |
[1] THE COURT: An application under s. 490(2)(a) of the Criminal Code for an order for further detention of things seized must be filed with the court registry before the valid Detention Order For Things Seized expires. That was not done in this case.
[2] The Crown, or in this case, the Conservation Service, must also provide the person from whom the thing(s) were seized with three clear days' notice of the date and time for the s. 490(2)(a) application hearing. Based on what the officer has told the court, that was done in this case.
[3] Finally, the s. 490(2)(a) hearing must begin before the valid detention order for things seized expires. There is some controversy as to whether or not my decision in R. v. Booth, 2021 BCPC 169, or Judge Lee's decision in R. v. H.G. and I.O.I.C. Inc., 2022 BCPC 298 applies. Either way, the application had to be initiated, that is, filed with the court registry and brought in front of a judicial officer, before the expiration of the Detention Order For Things Seized. That was not done in this case.
[4] We are, therefore, left in a situation not unlike in R. v. Skejeie and Mountain, 2023 BCPC 97. It is my view that I do not have jurisdiction now to grant the application because of the failure of the Conservation Service to follow the mandated Criminal Code deadlines. Accordingly, I am required to dismiss your application under s. 490(2)(a) and I do dismiss the application.
[5] However, you are at liberty to bring an application under s. 490(9.1) of the Criminal Code. The legal test is different under s. 490(9.1). I will leave it up to you and counsel for the Conservation Service to determine the paperwork and procedure required to make a s. 490(9.1) application. In the meantime, the individual from whom the rifle was seized may apply to have it returned to him. Time may be of the essence for you, Officer.
[6] In any event, the application on the list today is dismissed, but you are free to bring a new one under s. 490(9.1).
(REASONS CONCLUDED)